APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. Crim. No. 92-cr-00547.
Before: Sloviter, Chief Judge, Alito and Mckee, Circuit Judges.
George Salemo brings this appeal after being sentenced for a crime commonly known as "check kiting."*fn1 Although he challenges his sentence on numerous grounds, we need only address his claim that he was denied his Sixth Amendment right to counsel at sentencing. Because we find this assertion to have merit we will remand for resentencing.
On September 24, 1992, a federal grand jury returned a two-count indictment charging Salemo with bank fraud in violation of 18 U.S.C. § 1344. Prior to trial, the public defender who had been appointed to represent Salemo was allowed to withdraw, and the district court then appointed an attorney of Salemo's own choosing to represent Salemo at trial. After a two day trial, the jury convicted Salemo of both counts.
Sentencing was originally set for January 10, 1994, however, on three separate occasions, Salemo moved pro se for a continuance of the sentencing date and the district court granted each request. On March 1, 1994, Salemo wrote to his trial attorney and asked him to withdraw as counsel. Salemo also wrote to the district court and requested new counsel and yet another postponement of the sentencing. He stated that given his request for a change of counsel, he needed the continuance in order to have an opportunity to meet with an attorney and adequately prepare for sentencing. The sentencing hearing finally proceeded on April 4, 1994. At the beginning of that hearing the following Discussion occurred between the district Judge, Salemo's appointed counsel and Salemo:
THE COURT: We're ready for the sentence of Mr. Salemo, but I understand that there are some preliminary matters which we need to deal with.
The first is Mr. Salemo may not wish to have you, [trial counsel]. I don't know.
[TRIAL COUNSEL]: I'm perfectly aware of that, Your Honor. We have talked at length about it.
THE COURT: Do you wish to remain with him at counsel table or does he wish for you to step back and remain available as a standby counsel?
[TRIAL COUNSEL]: I will tell the Court what I told Mr. Salemo on several occasions. I will not withdraw voluntarily. If he does not want me seated here, I shall step back. . . .
THE COURT: Mr. Salemo, do you wish to state anything in regard to [trial counsel]?
THE DEFENDANT: Yes, Your Honor. As far as the sentencing today, again, I'm going to reiterate my request that it be continued.
THE COURT: Well, first we have to determine -- we're not there yet. We're going to deal with that.
THE DEFENDANT: All right. No, I had, as of March 1st, I wrote [my attorney] the letter that I've submitted to the Court, which I don't know if you received it in the mail on Friday --
THE DEFENDANT: -- and I had asked him to withdraw. He came and saw me at Fairton and we spent about ten, fifteen minutes together and I was under the understanding that he was going to withdraw. I guess we had a misunderstanding that he was going to wait and see what the Court said. . . .
We have not discussed the pre-sentence at all, I mean not in the slightest, and we haven't discussed the sentencing problems at all. Therefore, if we went ahead with the sentencing, I would have to represent myself. [Trial counsel] is not prepared to do that based -- and I filed an awful lot of material as the Court is aware on this -- on any of the issues or any of the problems with the pre-sentence report. . . .
I would prefer other representation.
THE COURT: Well, that's why we continued the case the last time. This is not the first time you've been brought down for sentencing.
THE DEFENDANT: No, I understand that, Your Honor, very definitely.
THE COURT: And we thought that the reasons to continue the last sentencing were weak, but . . . we thought we'd give you the benefit of the doubt and extend -continue the sentencing till today, ...